Somers and Chubb
[2012] FMCAfam 480
•25 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOMERS & CHUBB | [2012] FMCAfam 480 |
| FAMILY LAW – Procedural – discharge of Independent Children’s Lawyer. |
| Family Law Act 1975, s.68L |
| W & M & Anor [2006] FamCA 512 Lloyd & Lloyd and Child Representative (2000) FLC 93-045 Knibbs & Knibbs [2009] FamCA 840 |
| Applicant: | MR SOMERS |
| Respondent: | MS CHUBB (FORMERLY SIMMONS) |
| File Number: | SYC 745 of 2009 |
| Judgment of: | Kemp FM |
| Hearing date: | 10 May 2012 |
| Date of Last Submission: | 10 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2012 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Counsel for the Respondent: | Mr Barry |
| Solicitors for the Respondent: | Legal Aid Commission of NSW |
ORDERS
The father’s application in a case filed on 28 November 2011, seeking orders that the appointment of Ms Anne Connor as the Independent Children’s Lawyer (“ICL”) be discharged and a new ICL be appointed, be dismissed.
The CCTV footage the subject of Court Exhibit 1 is to be preserved in the form of that exhibit and not to be released to any party without leave of the Court
The matter be adjourned to 1 June 2012 at 9.30am for mention.
IT IS NOTED that publication of this judgment under the pseudonym Somers & Chubb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 745 of 2009
| MR SOMERS |
Applicant
And
| MS CHUBB |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court deals with the father’s Application in a Case, filed on 28 November 2011, seeking orders that the appointment of Ms C as the Independent Children’s Lawyer (“ICL”) be discharged and a new ICL be appointed.
The father filed an Amended Application in a Case on 3 April 2012 which sought the identical orders set out in his earlier application. The father agreed that the amended application should be dismissed and an order was made to that effect.
The ICL opposes the discharge order. The respondent mother also opposes the discharge order.
The applicant father is the respondent in the substantive parenting proceedings commenced by the mother. These proceedings concern the child of the relationship, [X], born [in] 2004, aged 7 years 9 months, (at the date of hearing) (“the child”).
The father relies on his affidavit affirmed on 2 April 2012 and filed on 3 April 2012.
The ICL has not filed any affidavit but relies on a number of tendered documents as follows:
Exhibit No
Document
Date
Tendered by
ICL1
Single Expert Report Professor C Quadrio
29/1/2010
ICL
ICL2
Child and Family Meeting Memorandum of Ms S
5/11/2010
ICL
ICL3
Child and Parents Issues Assessment of Ms S
15/11/2010
ICL
ICL4
Transcript of proceedings before FM Kemp of 16/11/ 2011
ICL
ICL5
Transcript of proceedings before Justice Johnston of 22/11/2011
ICL
ICL6
Family Consultant Memoranda of Ms S dated 13/1/2012 & 16/2/2012
ICL
ICL7
Guidelines for Independent Children’s Lawyers
8/12/2007
ICL
Court 1
Compact disc containing CCTV footage of a number of scenes taken in the Court building on 22/11/11.
Court
The ICL is represented by Mr Barry of Counsel. The applicant father and respondent mother are both self represented.
Notwithstanding that Mr Barry submitted that conversations deposed to by the father between himself and Ms C were controverted, the ICL did not seek to cross-examine the father or to file any affidavit deposing to such conversations herself.
The Court accepts the following chronology of facts:
a)The father was born [in] 1979 and is currently 33 years of age.
b)The mother was born [in] 1974 and is currently 37 years of age.
c)In early 2001, the parties commenced cohabitation. The parties married [in] 2004.
d)On [date omitted] 2004, the child was born.
e)On 31 May 2007, the parties separated and the father moved into his parent’s home.
f)On 12 February 2009, the mother filed an Initiating Application in this Court, seeking orders, inter alia, that the child live with her and spend time with the father on a supervised basis.
g)On 27 February 2009, the father filed a Response seeking orders, inter alia, that the child live with the mother and spend time with him on alternate weekends and Wednesday and Thursday each week and that his time be unsupervised.
h)Interim orders were made in this Court on 4 March 2009 that the child live with the mother and an ICL be appointed. The father agreed that he would undergo urinalysis testing weekly from the date of the orders to the interim hearing.
i)On 9 April 2009, the father commenced spending supervised time with the child at the [P] Contact Centre.
j)In September 2009, the [P] Contact Centre advised the father that the Centre was no longer prepared to supervise his time with the child.
k)On 29 January 2010, Professor Q prepared a report (Exhibit “ICL1”) in this matter.
l)Final parenting orders were made, by consent, in this Court on 3 February 2010. Those orders providing, inter alia, that the parents have equal shared parental responsibility for the child, that the child live with the mother and spend defined time with the father and provided for other consequential orders, including those providing for arrangements at changeovers.
m)On 29 April 2010, the mother filed an Initiating Application in the Family Court of Australia seeking orders, inter alia, for sole parental responsibility of the child and for a suspension of the orders of 3 February 2010 for the child to spend time with the father.
n)On 6 July 2010, the Family Court of Australia (Judicial Registrar Loughnan, as he then was,) ordered an interim variation of the then current ‘spend time with’ orders.
o)On 5 & 15 November 2010, family consultant, Ms S prepared memoranda (Exhibits “ICL2” & “ICL3”) following various conference events.
p)On 24 August 2011, the matter was transferred from the Family Court of Australia to this Court by order of His Honour Justice Watts.
q)On 16 November 2011, the mother sought a recovery order following the father’s failure to return the child. The ICL supported the mother’s application. The Court ordered that the father return the child that night and on a “without admission basis” the mother was not to discipline the child. Neither party were to discuss disclosures made by the child to the Police and Doctor and both parties were directed to attend a Child Dispute Conference on 10 January 2012.
r)Between 16 November 2011 and 22 November 2011, the father had obtained an Apprehended Violence Order against the mother with respect to certain events which had transpired [omitted] (a changeover location).
s)On 22 November 2011, both parties attended the Court building at 97 Goulburn Street, Sydney (the father and his partner with the child). The mother took the child whilst the child was in the lobby area and went to Level 7 of the building.
t)The mother then returned to the ground floor where there was a scuffle between the mother (and child) and the father. The father contacted the Police to attend and the ICL was contacted by the mother’s then solicitor, (Mr Skidmore) and the ICL attended. A family consultant, Mr L, persuaded the Police to allow the child to be taken to the child minding area on the second floor and the ICL secured a judge of the Family Court of Australia to deal with the matter. Justice Johnston, after hearing the parties, ordered that the mother be permitted to collect the child from level 2 to the effect that the then current orders remained in force, with the matter not to be re-listed in this Court before 30 November 2011.
u)On 28 November 2011, the father filed an Application in a Case seeking the removal of Ms C as ICL and that a new ICL be appointed.
v)The matter came before this Court on 22 December 2011 when the father was ordered to have defined time over the Christmas holidays. The mother was directed to file a Notice of Address for Service after withdrawing her then solicitor’s instructions to appear for her.
w)On 13 January 2012, the family consultant, Ms S’s memorandum (Exhibit ICL6) was released to the parties
x)On 16 February 2012, Ms S’s further memorandum (Exhibit ICL6) was released to the parties.
y)On 19 March 2012, this Court ordered the child’s attendance on a specialist, made directions regarding the further hearing of the competing applications, including in relation to showing the CCTV footage of 22 November 2011 and further requested that the Department of Human Services be invited to intervene in the proceedings.
z)On 17 April 2012, the mother filed an application for recovery of the child returnable on 8 May 2012. On that date, this application was dismissed, as the child was then with the mother in her care. The father did not appear.
The Law
The ICL was appointed by an order made pursuant to s.68L of the Family Law Act 1975 (“the Act”).
The role of the ICL is described in s.68LA as including:
“General nature of role of independent children's lawyer
68LA(2) The independent children's lawyer must:
(a)form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
68LA(3) [Suggested course of action] The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
68LA(4) [The independent lawyer is not the child’s legal representative] The independent children's lawyer:
(a)is not the child's legal representative; and
(b)is not obliged to act on the child's instructions in relation to the proceedings.
Specific duties of independent children's lawyer
68LA(5) The independent children's lawyer must:
(a)act impartially in dealings with the parties to the proceedings; and
(b)ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and
(c)if a report or other document that relates to the child is to be used in the proceedings:
(i)analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and
(ii)ensure that those matters are properly drawn to the court's attention; and
(d)endeavour to minimise the trauma to the child associated with the proceedings; and
(e)facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.
Detailed guidelines have been endorsed by the Chief Justice of the Family Court of Australia, and also by this Court which set out the Courts’ expectations in relation to the conduct of an ICL which include:
“1. The Purpose of these Guidelines
This document is intended to provide guidance to the Independent Children’s Lawyer (ICL) in fulfilling his/her role.
The Guidelines have also been issued for the purposes of providing practitioners, parties, children and other people in contact with the Family Courts, with information about the Courts’ general expectations of ICLs. The Guidelines set out these expectations as they relate to children in circumstances of family violence, children from culturally and linguistically diverse families and communities, children with disabilities, Aboriginal and Torres Straight Islander children, and where applications arise for the authorisation of special medical procedures and other orders relating to the welfare of children.
This is a public document which is endorsed by the Family Court of Australia and the Federal Magistrates Court of Australia and is made available by the Legal Aid Commissions of the Australian States and Territories which fund the work of ICLs. In addition, the Guidelines will be used in the training of ICLs.
2. Introduction
The role of the ICL is unique. The lawyer appointed to represent and promote the best interests of a child in family law proceedings has special responsibilities.
Decisions in particular cases as to how the ICL progresses the case and how s/he involves the child in the case are ultimately, subject to the statutory requirements in Division 10 Part VII, in the ICL's discretion. The ICL is expected to use his/her professional judgment and skill, subject to any directions or orders of the Court. The availability of funding is a practical constraint. The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities. A glossary of terms used in the guidelines appears at the end of this document to assist readers in understanding them.
3. Statement of Principles
The appointment of an ICL is one means of giving effect in family law proceedings to the United Nations Convention on the Rights of the Child which states that:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." (Article 3)
"Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." (Article 12.1)
"For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body consistent with the procedural rules of national law." (Article 12.2)
4. The Role of the ICL
The best interests of the child will ordinarily be served by the ICL enabling the child to be involved in decision-making about the proceedings. However, this does not mean that the child is the decision maker. Among the factors that indicate the appropriate degree of involvement in an individual case are:
the extent to which the child wishes to be involved; and
the extent that is appropriate for the child having regard to the child's age, developmental level, cognitive abilities, emotional state and views.
These factors may change over the course of the ICL's appointment.
The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.
The ICL must be truly independent of the Court and the parties to the proceedings.
The professional relationship provided by the ICL will be one of a skilful, competent and impartial best interests advocate. It is the right of the child to establish a professional relationship with the ICL.
The ICL should seek to work together with any Family Consultant or external expert involved in the case to promote the best interests of the child.
The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child's best interests.
The ICL should bring to the attention of the Court any facts which, when considered in context, seriously call into question the advisability of any agreed settlement.
The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child.
The ICL does not take instructions from the child but is required to ensure the Court is fully informed of the child's views, in an admissible form where possible. The ICL is to ensure that the views and attitudes brought to bear on the issues before the Court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.
The ICL is expected and encouraged to seek peer and professional support and advice where the case raises issues that are beyond his or her expertise. This may involve making applications to the Court for directions in relation to the future conduct of the matter.
The ICL must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.
5. Relationship with the Child
The child has a right to establish a professional relationship with the ICL. In considering any views expressed by the child and the steps to be taken in a matter the ICL is to be aware:
that each child will have different emotional, cognitive and intellectual developmental levels, family structures, family dynamics, sibling relationships, religious and cultural backgrounds; and
that children are vulnerable to external pressures when caught in disputes involving their parents.
5.1 Information which should be explained to the child
When the ICL meets the child, s/he should explain to the extent that is appropriate for the child:
the role of the ICL including the limitations of the role;
the Court process (including any anticipated interlocutory stages); and
the other agencies that may be involved and the reasons for their involvement.
The ICL is to ensure that the child is aware that information provided by the child to the ICL in some circumstances may have to be communicated to the Court, the child's parents or other persons or agencies. A strategy should be developed in consultation with any Family Consultant involved in the case and with the child as to the manner in which this is done. The aim is to minimise the potential for any adverse reaction towards the child.
Despite the inability to guarantee the child a confidential relationship, the ICL should, however, strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including:
how the child can have a say and make his/her views known during the process;
that where a child of sufficient maturity wishes to have a direct representative who will act on the child's instructions, the ICL should inform the child of the possibility of applying to become a party to the proceedings;
the involvement of any report writer, the nature and purpose of the report, the use to which the report will be put and that all parties will see the report; and
how the ICL can be contacted by the child.
5.2 Limitations of the Role of the ICL
The ICL should guard against stepping beyond his or her professional role and should seek guidance from a Family Consultant or other professional when necessary.
While the Family Law Act provides some basis for a confidential relationship between the ICL and the child, there are circumstances where the ICL cannot guarantee the child a confidential relationship. In addition to explaining this limitation at the commencement of the relationship, it may be necessary to periodically remind the child.
It is not the role of the ICL to:-
conduct disclosure interviews;
become a witness in the proceedings; or
conduct therapy or counselling with the child.
The ICL should be alert and sensitive to the risk of a child becoming over dependent upon him or her and should consider seeking peer or professional advice in responding to such a situation.
The ICL should prepare the child for the end of the professional relationship before the end of the proceedings. They should discuss the fact that the ICL's role will soon be over, and determine what contact, if any, they will continue to have.
5.3 Children's Views
The ICL should seek to provide the child with the opportunity to express his or her views in circumstances that are free from the influence of others. A child who is unwilling to express a view must not be pressured to do so and must be reassured that it is his or her right not to express a view even where another member of the sibling group does want to express a view.
The ICL should ensure that there are opportunities for the child to be advised about significant developments in his or her matter if the child so wishes, and should ensure that the child has the opportunity to express any further view or any refinement or change to previously expressed views.
The ICL must take into account that the weight to be given to the child's views will depend on a number of factors, and is expected to be familiar with case law on the subject. In preparing to make submissions on the evidence as to the weight to be placed on the views of the child, the ICL may consult with the single expert, Family Consultant or other relevant expert in relation to:
the content of the child's views;
the contexts in which those views both arise and are expressed;
the willingness of the child to express views; and
any relevant factors associated with the child's capacity to communicate.
The ICL is to ensure that any views expressed by the child are fully put before the Court and so far as possible, are in admissible form. This includes views that the ICL may consider trivial but the child considers important. The ICL is to also arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes.
5.4 Making submissions contrary to the Child's views
If the ICL considers that the evidence indicates that the best interests of the child will be promoted by orders which are contrary to the child's views, the ICL is to:
advise the child that s/he intends to make submissions contrary to the child's views;
ensure that the child's views are before the Court, together with the arguments which promote the adoption by the Court of the child's views;
make submissions which promote the adoption by the Court of orders which are in accordance with the child's best interests;
provide clear and cogent submissions as to why the child's views do not promote the child's best interests; and
explain to the child at the conclusion of the proceedings why he/she made a submission that was contrary to the child's views (if there has not been an opportunity to do so prior to the conclusion of the proceedings).
6.General procedures to be followed when an ICL has been appointed
6.1 Omitted
6.2 Meeting the Child
It is expected that the ICL will meet the child unless:
the child is under school age;
there are exceptional circumstances, for example where there is an ongoing investigation of sexual abuse allegations and in the particular circumstances there is a risk of systems abuse for the child;
there are significant practical limitations, for example geographic remoteness.
The assessment about whether, where and how to meet the child is a matter for the ICL. An assessment may be made in consultation with any Family Consultant or other expert involved in the case.
6.3 Omitted
6.4 Relationship with the Parties and their Legal Representatives
The ICL is to remain independent, objective and focused upon promoting the child's best interests in all dealings throughout the proceedings. The parties and their legal representatives should be encouraged to be nonadversarial where possible and to maintain a focus on the child's best interests.
The ICL should promote this approach whenever appropriate.
The ICL should as soon as practicable inform the parties of their role and use their best endeavours to ensure the parties understand the ICL's role within the proceedings.
Where parties are legally represented, communication between the ICL and the parties should normally be through the legal representatives.
The ICL may need to have direct contact with the parties during the course of the proceedings. Such contact must have the consent of the party concerned and should normally be arranged through the parties' legal representatives. If one or more parties are unrepresented, the ICL is to communicate directly with the party and should advise the other parties of the fact of any meeting with an unrepresented party.
The ICL is not required to communicate to the other parties the substance of his or her conversations with the child.
The ICL must at all times be and be seen to be independent and at arm's length from any other party to the proceedings.
The ICL is to act as an "honest broker" on behalf of the child in any negotiations with the other parties and their legal representatives.
Once the ICL has formed a preliminary view as to the outcomes which will best promote the child's best interests, the ICL will consult with the child and take into consideration any expressed views of the child, as may be appropriate in all the circumstances. The ICL will then communicate his/her views and details of proposed orders to the parties where possible.
If during the period of appointment of the ICL there are proceedings between other parties in respect of contravention of an order, generally the role of the ICL ought not be an active one. However, this is subject to the proviso that where the ICL considers (a) that such proceedings are detrimental to the best interests of the child or (b) that the presence of the ICL may further the best interests of the child, then it is appropriate for the ICL to be present and, if necessary, to seek to appear in the proceedings The ICL must, however, be served with the application and any supporting material, and be notified by the parties of any findings and sanctions imposed by the Court.
6.5 Case Planning
The ICL is to seek to develop a case plan at the earliest opportunity, where appropriate, in consultation with any Family Consultant or other expert involved in the case.
In the case plan, the ICL should:
canvass the nature of any reports or examinations of the parties and/or the child;
develop a strategy for the involvement of the child in any examination/assessment process;
liaise with any Family Consultant involved in the case, relevant government departments, contact centres, schools and agencies to bring together relevant information to assist the Court in assessing and determining the best interests of the child;
develop opportunities for the matter to reach an agreed outcome which best promotes the child's best interests;
provide information, support, and assistance as required for or requested by the child during the process of litigation, whether directly or by way of appropriate referral;
be vigilant and make every endeavour to minimise systems abuse of the child; and
consider whether it is appropriate to obtain an expert report. In some Division 12A cases a direction from the court in which the issues have been settled may be required before the expert is engaged to prepare the report.
The strategy outlining the involvement of the child in the examination/assessment process has the following primary aims:
to ascertain the level of involvement that the child wishes to have in the court proceedings;
to provide the child with opportunities to express his or her views in relation to with whom they live and who they see, to the extent that the child wants to express any view;
to provide evidence of matters relevant to the child's best interests and in particular the relationship of the child and the parties;
to prevent the systems abuse of the child as a result of the child being over-interviewed; and
to be in accordance with the Family Violence policy issued by the Chief Justice of the Family Court, other relevant best practice guidelines and applicable protocols for dealing with matters involving family violence. No process should be pursued which departs from these guidelines.
6.6 Changing, Reviewing or Terminating the Appointment of the ICL
The appointment of an ICL for sibling groups can present special difficulties.
Cases may arise where the ICL may need to give consideration to the Court making a further assessment as to whether the proceedings require another ICL to be appointed.
The ICL should consider the usefulness of the order for representation of the child from time to time during the course of a case. The matter should be relisted and an order sought from the Court discharging the appointment if the ICL is of the opinion that:
there is no useful purpose or no further purpose served by the order for the representation of the child;
the ICL's relationship with the child has broken down irretrievably to the extent that it is not possible to represent his or her best interests;
continuation of the appointment would be adverse to the best interests of the child; or
practical circumstances make it impracticable to represent the best interests of the child.
The ICL should ensure that arrangements are made to inform the child or children of any alterations to the arrangements affecting their representation in accordance with their age, developmental level, cognitive abilities and emotional state.
6.7, 6.8, 6.9 6.10 6.11 - omitted
7. Family Violence and Abuse
Like all practitioners, the ICL is expected to be familiar with the relevant provisions of the Family Law Act 1975 (Cth), the Family Law Rules and the Chief Justice's Family Violence Policy for dealing with matters involving alleged family violence. The ICL must also be familiar with other relevant best practice guidelines and where relevant, the protocols between the Court and State and Territory departments responsible for the investigation of child abuse.
Family violence and abuse are serious issues whenever they have occurred and should always be presented as being so. They are considerations pursuant to section 60CC of the Act of which a Court must take account. Their degree of relevance in a particular case should be considered with the assistance of a counsellor or other mental health professional who has knowledge of family violence and abuse issues. In appropriate cases a full assessment should be conducted by such a counsellor or other mental health professional prior to the matter being settled or heard by a Court.
Particular difficulties can arise for the ICL where one or more of the parties is unrepresented. While it is not expected that the ICL will present the case for an unrepresented party, the ICL should ensure that as far as practicable, evidence concerning family violence and abuse that is relevant to the best interests of the child is put before the Court.
The ICL is expected to be alert to any risk of harm to a child that may arise from the other parties, or the physical environment in which the child may be. It will usually be inappropriate for the ICL to bring the child into proximity with an alleged perpetrator of harm. Where this does occur, visual or verbal contact with a party may be harmful and it will be necessary to carefully consider whether interview arrangements and the physical setting need to be structured in particular ways in order to protect the child and/or accompanying family members.
8. Cross-cultural and/or religious matters - omitted
9. Aboriginal and Torres Strait Island Children - omitted
10. Children with disabilities
Particular sensitivity is needed to ensure that children with physical, intellectual, mental and/or emotional disabilities can participate in the decision-making process involved in the proceedings to the extent of the child's abilities and wish to participate.
The ICL should be aware of Article 23 of the United Nations Convention on the Rights of the Child which states that:
State Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.
The ICL will be assisted by liaison with the existing specialist supports to the child in ascertaining the child's capacity to communicate his or her views, how the expression of such views can be facilitated, and any other relevant needs the child may have.
In obtaining an expert, the ICL should inquire as to the report writer's training and experience in working with children with disabilities prior to allocating the report to that individual. The ICL must be satisfied that the report writer has the necessary training, knowledge and experience to produce a report that comprehensively covers (amongst other matters) the disability issues pertaining to the case. The single expert, Family Consultant or other relevant expert retained in the case may assist with adducing this evidence before the Court.
11. Special Medical Procedures and other parens patriae/welfare jurisdiction cases – omitted
12. Glossary of terms - omitted
In the Full Court of the Family Court of Australia’s decision in W & M & Anor [2006] FamCA 512, it was said at paragraphs 33 and 34:
“33.It is clear that the Court has the power to remove a child representative. See Lloyd and Child Representative (2000) FLC 93-045; Re K (1994) FLC 92-461; and T and L (2000) FLC 93-056. That power is to be exercised in accordance with the proper appreciation of the role of the child representative and, of course, the evidence.
34.In T and L, Chisholm J expressed the view that while an application to remove a child representative is not strictly covered by the principle that the child's best interests must be treated as the paramount consideration, those interests will normally be a matter of great and probably overwhelming importance. While a child representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove such a representative merely because a litigant has taken the view that the representative is acting contrary to that litigant's position or, from that litigant's point of view, contrary to the child's best interests.”
This Court was referred to the decision of Holden CJ. of the Family Court of Western Australia in Lloyd (2000) FLC 93-045 at paragraphs [7]-[10] where it was said:
“7. There is no doubt that the Court has the power to discharge an order for separate representation. In the case of Re K (1994) FLC 92-461 the Full Court of the Family Court of Australia expressly approved of the following statement made by Hannan J in Pagliarella and Pagliarella (1993) FLC 92-400 at 80,105:
“It was not submitted that the Court did not have the power to discharge a separate representative and I have no doubt that such a power exists. Section 65 (now section 68L) of the Act empowers the Court to make an order for separate representation of a child and although it may request a Legal Aid body to arrange the representation... the appointment is by order of the Court and the power of appointment would carry with it the power to discharge the person appointed pursuant to the order, if proper cause is shown that it is appropriate or desirable that the person appointed as the separate representative should be removed.”
8. The role of the separate representative is relatively well settled. In P and P (1995) FLC 92-615 at 82,156 the Full Court said as follows:
“The role of the Separate Representative
In this regard, we think it worth saying something more about the role of a separate representative in a case such as this. In Bennett and Bennett (1991) FLC 92-191, particularly at pp 78,258-78,259, the Full Court discussed the proper role and function of a separate representative and in Re K (1994) FLC 92-461 it set out guidelines as to the circumstances in which a separate representative was to be appointed, which normally would include cases of this nature if one of the parties, such as the Public Advocate, was not fulfilling such a role.
In a helpful submission prepared on behalf of the separate representative in this case by Ms Ryan of the Legal Aid Commission of NSW, the position of a separate representative was summarised as follows:
‘The separate representative ought:-
1. Act in an independent and unfettered way in the best interests of the child.
2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.
3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.
4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.
5. Test by cross-examination where appropriate the evidence of the parties and their witnesses.
6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.
7. Minimise the trauma to the child associated with the proceedings.
8. Facilitate an agreed resolution to the proceedings.’
These statements are of general application to all cases and we are in broad agreement with them.”
9. The order being sought by the husband is not a parenting order within the meaning of s 64B and, therefore, does not directly invoke the application of the paramountcy principle set out in s 65E.
10. However, this is a matter in which the ultimate issue is whether or not certain parenting orders ought to be made. It is also a matter relating to the proper representation of the children. In those circumstances, in my opinion, the paramountcy principle is relevant, see CDJ v VAJ (1998) FLC 92-828.”
Holden CJ in Lloyd set out a number of matters which would need to be considered by a Court in any application for the discharge of an ICL. As His Honour states in paragraph 11:
“11. Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i) if there is evidence that the separate representative had, in any way, acted contrary to the children's interests;
(ii) if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii) if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.”
Holden CJ at paragraph 30 of his decision further states that there are a number of “very good reasons” why the Court should be slow to discharge an ICL on the basis of “largely unsubstantiated complaints of one of the parties”. His Honour records those reasons as including:-
“ (i) The best interests of the children have to be borne in mind. Unfortunately these children have been embroiled in the dispute between their parents for a long period of time. For much of that time they have had C as their representative who states that in her belief she has developed a good relationship with the children. That would not be surprising given the period of time that she has been representing them. Given what the children have had to endure to date, by virtue of these proceedings, it does not seem to me to be in their best interests to deprive them of a representative with whom they have built up a good relationship and introduce them to a complete stranger with whom they may or may not develop a similar relationship. In my opinion the Court should not take that step unless there is good reason to do so. No such reason is present in this case.
(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not ``on side'' or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative. [Emphasis added in these reasons]
(iii) There is also a public policy consideration. To date, as I understand it, the fees of the children's representative have been met by Legal Aid. As I indicated earlier in these reasons for judgment, these parties have been arguing in this Court over their children for a period approaching 6½ years. C has been involved in the proceedings for about 4½ of those years and, no doubt by virtue of that fact, has a thorough knowledge of what has gone on between the parties.
Any new solicitor appointed would have to wade through the four volumes of the Court file to acquire the necessary knowledge to adequately represent the children. That, of itself, would involve considerable expense to the Legal Aid Commission, the resources of which are finite. That is not to say that this consideration should prevail where obvious impartiality has been demonstrated to the satisfaction of the Court.”
His Honour Justice Murphy in his decision in Knibbs & Knibbs [2009] FamCA 840 when dealing with an application for the discharge of an ICL stated, with particular reference to the passage emphasised above:
“40. With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that “consideration” ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
41. It is important to understand that, although an ICL is in a unique position vis-à-vis their “client” by reason of that “client” being a child, and a child who is the subject of competing contentions by his or her parents, the ICL nevertheless has each and all of the same professional obligations owed to the court that any legal practitioner has.
42. Further, those obligations might be seen to be particularly clear given that their professional judgment should not, unlike a legal practitioner acting for a party, be potentially influenced by, or potentially clouded by, any competing requirement to act only in accordance with a client’s instructions.
43. Once it is understood that the ICL’s primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances - provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.
44. Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
45. In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).
46. In this case, this court’s Guidelines for Independent Children’s Lawyers are quoted at length in the letter from the mother’s solicitors earlier referred to, and in the written submissions handed up at the hearing on her behalf. Included in neither is the following which should be seen as important to the issues in this case:
“2. Introduction
The role of the ICL is unique. The lawyer appointed to represent and promote the best interests of the child in family law proceedings has special responsibilities.
…
The ICL is expected to use his/her professional judgment and skill, subject to any directions or orders of the court. The availability of funding is a practical constraint.
The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities” [emphasis added].”
47. The Independent Children’s Lawyer is, immediately upon appointment, in an invidious position. He or she is obliged to look beyond the assertions and counter assertions advanced by children’s conflicted parents (and others). In doing so, he or she is presuming, by dint of statutory and other responsibilities, to interfere, to one degree or another, with what can be seen to be a basic right: the right of a parent to parent his or her child in the way they best think fit.
48. Yet, when parents, through their conflict or the nature and extent of assertions one makes against the other, abdicate to the court decisions about the best interests of their children, views other than their own, including the views of an ICL can, and in the case of the court will, intervene. In that situation, rights and considerations relevant to a determination of best interests enshrined in the Act predominate, as do duties owed to the court by an ICL.
49. The obligation upon an ICL to act objectively and impartially should not be seen as meaning that he or she should act as a benign or ambivalent mouthpiece for competing evidence. Frequently, doing so can involve an abdication of their proper professional responsibilities.
50. The ICL (and counsel appearing for the ICL) should be no less courageous, and no less firm, and no less cogent, in advocating for a result or findings – based on a careful analysis of evidence properly before the court – than any other advocate or legal practitioner.
51. Of course, as earlier observed, the ICL’s obligations differ from those of a legal practitioner representing a party; the former is not constrained by instructions; the latter is. The ICL’s clear obligations are likely to bring them into conflict with a party whose views or case run contrary to that which is asserted by the ICL. But, this is not a circumstance disqualifying an ICL from pursuing, and pursuing strongly, what he or she considers to be an outcome in the children’s best interests. In fact, frequently, the opposite is the case: the views or attitudes held by a parent can be the very reason why an ICL argues directly contrary to them.
52. The obligations of the Independent Children’s Lawyer are likely to include the garnering of evidence, and the pursuit of evidence, and the careful presentation of evidence, which might directly contradict a view or views which the ICL might themselves have. An ICL’s views or assessment of a case do not at all derogate from the obligation to obtain relevant evidence and the proper presentation of that evidence. To do otherwise would be to prejudge the case. Not only is that an abdication of proper professional responsibilities, but it also purports to impermissibly usurp the function of the court.
53. But, equally, if the obligation to obtain, and cogently present, all reasonably available evidence relevant to the court’s inquiry into the children’s best interests has been discharged, no part of the ICL’s functions prevents the ICL from presenting a “view” that prefers some evidence over other evidence. There is nothing remarkable about an ICL submitting that some reliable evidence should be preferred over other reliable evidence, nor from submitting that some evidence is reliable and other evidence is not reliable, provided, again, that the submissions have a proper foundation. Indeed, it is frequently the duty of the ICL (and his or her counsel) to do precisely that.
54. Although a trite proposition, the submissions in this case probably necessitate it being emphasised that neither an ICL nor an ICL’s view decide a case; a judge does. Submissions by ICLs – particularly if properly based on evidence independent of the parties’ conflict, including in particular, expert evidence – are likely to be accorded appropriate respect. But their views of the case or the evidence in the case can be, and are, rejected by courts.
55. Before passing to the submissions in this case, it is important to mention one final matter.
56. As both the Guidelines and decisions of this Court recognise, an important aspect of the proper exercise of responsibilities by an ICL is to act as an “honest broker”, often between highly-conflicted parties each of whom raise contentions based, presumably, on their own perceptions as to the best interests of their children. That role can involve ICLs playing an active part in having parties attempt to resolve their dispute.
57. As an aspect of that (which in my view has real resonance for the facts of this case) it is highly likely that things will be said by ICLs which challenge the perceptions, views or, sometimes, the fundamental parenting philosophies, of parents. It goes without saying that an ICL must at all times be conscious of the boundaries of their role. Equally, however, a wholly benign approach to that important aspect of an ICL’s role might be to deprive the parties of the benefit of knowledge or experience.
58. What must be understood is that what is (or should be) being shared, is not a view of a party’s parenting per se, because that is no part of the ICL’s brief, but, rather, a view of what the evidence reveals about issues relevant to the determination of best interests by a court charged with that task (and, perhaps, a view as to what a court might make of that evidence).
59. Equally, it is fundamentally important to understand that no party is bound to accept any view expressed by an ICL – a party is, of course, perfectly entitled to reject any view out of hand. But an essential part of the role may well be to offer views in the manner just described, if such views are considered to be in the best interests of the particular children concerned.
60. Obviously enough, that can put an ICL in a precarious position and the degree to which an ICL does, or does not, offer views in the proper context just described requires great care and is very much a matter of professional judgment to be exercised in each individual case. But, again, views or suggestions offered in the context just described by no means necessarily point to an ICL failing to act in accordance with their professional responsibilities or to exhibit partiality warranting their removal. Again, the opposite can be true: it can be seen as part of their duties and responsibilities.
61. Finally, the matters just discussed, in so far as they are relevant to the obligations of an ICL in presenting proposals or arguments to the court, apply just as much to interim hearings as they do at trials. Indeed, in some respects, they apply more so. For example, an ICL might have a “view” properly founded on the evidence but, until that evidence is tested at a trial, might contend, in the interests of minimising risk, for time with a parent to be supervised until that trial.”
The broad basis of the father’s application in this matter is that the ICL was essentially not acting in the best interests of the child because she was exhibiting bias towards him and had demonstrated a lack of professional objectivity.
The Court now turns to examine the specific complaints raised by the father.
The father’s affidavit asserts that:
a)On 16 November 2011, at the beginning of proceedings, when asked to explain inconsistencies in this case, the ICL said words to the effect of “I have been previously removed from this case and then later re-appointed, I don’t know anything about what is going on with this case.”.
An examination of the transcript for 16 November 2011 reveals that Ms C stated “the old proceedings, your honour, were finalised and my representation of [X] ceased, but I was re-appointed in, I think April of last year so there is an old set of proceedings which had in fact finalised and the whole thing was re-activated”. Nowhere does she say “I don’t know anything about what is going on with this case.
b)On 16 November 2011, Ms C claimed that a police investigation regarding an assault on the child was finalised. The father points to various documents including a facsimile from the Police dated 21 February 2012 indicating that the investigation was then ongoing having been transferred to the [omitted] Police (also to [D]) and a course of action was yet to be determined.
An examination of the transcript for 16 November 2011 records Ms C stating “…so firstly, I spoke with Constable O who indicated Constable D, as Mr Somers indicated, had spoken and interviewed [the child] on Monday, two days ago. She, Constable D, has reported that – has placed on a follow-up there was no offence recorded and there will be no further police action recommended. She was unable to detect any offence having been committed and would be making that recommendation. The matter is – I cannot indicate that the matter is closed in that she indicated, by way of protocol, the matter goes through the domestic violence unit and the supervisor at that station.” The father’s submission was that the [D] police had become involved in the matter. Notwithstanding that, Ms C’s submission could in no way be described as false or misleading. Indeed, Ms C was at pains, in the transcript, to raise the admissibility of her conversations with the persons named.
c)On 16 November 2011, Ms C suggested to the Court following conversations with the child’s schools that the child had disclosed abuse by his mother to the NSW Police and Medical Practitioners was false.
The transcript reveals that Ms C stated that the Police enquiries with the relevant teachers were to the effect that none had observed bruising on the child during the break proceeding the father’s weekend with the child but added “that’s not to say, of course, your honour that there was not some bruising but.. that it was not of such magnitude…”.
The father made it clear that the child had taken some time to be comfortable in any disclosure and that that had occurred over the course of the weekend. The father submitted that while there wasn’t an initial report that the child had elaborated over that time on the actual event which involved the mother grabbing him, pulling him and his arms had been bruised. This was clearly raised by the father. Ms C took the Court to what she understood to be a divergence in the time line affecting the father’s account and stated that she was a little confused by that. Ms C stated that if what the father asserted had happened, in the time referred to, then it would have been opportune for him to take the child to the doctor rather than to a martial arts class. This was raised as a matter of some evidentiary confusion. The ICL was entitled to form such a view on the evidence and to make submissions with respect to the parties’ asserted positions.
d)On 16 November 2011, Ms C did not recommend that the child be assessed for autism, although the father claims she saw documentation that stated the child was not autistic.
The father submitted to the Court that he had material which contradicted multiple claims as to the child being “severely autistic”. The father maintained that the child was not autistic. The father referred to the Child Responsive Program Memorandum Report prepared by Ms S on 15 November 2010 which stated that the child’s “academic, social and emotional needs are being met to the extent that he no longer carries the diagnosis of mild autism”. The Court notes that this was not a final view given that she clearly stated it was “preliminary” and further, Ms S’s qualifications would not enable her to make a medical diagnosis in any event. Subsequently, Ms S in her reports dated 10 January 2012 and 16 February 2012 recommends that the child be referred for appropriate assessment with respect to any asserted autism. Both these reports refer to the parent’s conflicted positions in respect of the child’s alleged autism. A psychological assessment report for the child produced by Northern Sydney Central Coast NSW Health was exhibited before the Court on behalf of the father. Ms C submitted that the issue to which the father refers was in relation to a diagnosis of autism and submitted that that was not a matter that needed to be dealt with by the Court on that day. The Court accepts that position.
On 22 November 2011, when the matter came before Justice Johnston, Ms C made it clearly known the level of disputation between the parties as to whether the child was on the autism spectrum and whether that be mild, severe or not at all. Ms C could do no more than that at that time. Ms C’s position was not to correct the mother’s submissions which spoke of a more severe form of autism or to assert the father’s position of there being no autism in the absence of any medical evidence. The parties themselves put those matters, before the Court. Ms C’s position was that that issue, raised as it was by Professor Q, being a medical practitioner, was before the Court and Ms C did no more than refer the Court to Professor Q’s view, which the Court accepts was the appropriate and correct thing to do, given the need to seek further medical expertise in respect of the events following her assessment.
The issue as to the child’s diagnosis is currently awaiting further assessments, in particular from Dr S, pursuant to orders made on 19 March 2012. As the Court understands, a second assessment for the child has been booked for 20 June 2012.
e)On 16 November 2011, the ICL failed to make recommendations that erred on the side of caution even though the ICL was aware of death threats made by the mother towards the child, an AVO by the Police that they held fears for the child’s safety, the mother’s mental illness and that she had put the child’s life in grave and immediate danger.
Ms C at the time of the hearing sought specific orders that the mother be restrained from using any physical chastisement towards the child whatsoever and that she be restrained from verbally or physically abusing the child. All of the matters referred to by the father were contested by the mother.
f)On 16 November 2011, the ICL repeatedly criticised the affidavit of the father, so that she could support the mother’s denial of causing actual bodily harm to the child.
As stated above, Ms C was entitled to make the criticisms that she did.
g)The father states that the ICL said to him during a meeting with him on 16 November 2011, following being made aware of the child’s disclosure of child abuse to the NSW Police and Medical Practitioners “I will be putting forward to the Magistrate that you caused the bruising to [X]’s arms”.
Ms C did not make any such assertion before the Court.
h)On 22 November 2011, following the arrival of the ICL at the Court building, the father states that the ICL said to him “I don’t care if the child has an AVO against the mother or if Police hold fears, I will still be supporting the mother”.
Ms C did not make any such assertion before the Court.
i)On 22 November 2011, the ICL failed to inform the Magistrate [Judge] and showed total disregard of the AVO against the mother by the Police on the child’s behalf following death threats by the mother.
Ms C made submissions and quite clearly indicated that “the parties will correct me if I mislead you in any way” given the extraordinary circumstances as to how the matter came before Justice Johnston that afternoon, Ms C stated “I must tell you up front I don’t have all the Court documents because I raced from another matter to this matter”.
Ms C, in fact, in response to the father submitting that there was an AVO in place stated “well I will let you tell”. Notwithstanding that, Ms C made a detailed submission concerning the father attending [omitted] Police, obtaining a provisional AVO in favour of himself, his partner and the child and on the strength of that, determined to attend the school on the Monday between 1.30pm and 2.00pm and asked to take the child with him. Ms C records that the Deputy Headmaster, not knowing what to do, released the child to the father. Very relevantly she stated “so that’s the situation as I understand it. No doubt the father will correct me where I’m wrong.”
That was an entirely appropriate submission to make from the ICL’s point of view.
j)On 22 November 2011, Ms C suggested to the Court following conversations with the child’s schools that the child had disclosed abuse by his mother to the NSW Police and Medical Practitioners was false.
Ms C submitted that the matter had had a long history. She said she had no knowledge of any allegations that the mother had ever harmed the child in any way. She says that the father had made the allegations about the bruising and those matters were before the Court. The father added “the medical profession and the NSW Police hold views”.
Ms C quite properly submitted to His Honour that it would take at least a week to be able to get prepared and to get subpoenas out and to get the material referred to by the father and the mother.
k)On 22 November 2011, the ICL failed to inform the Magistrate [Judge] that the child was in the father’ care and the aggressive manner of which the mother used to remove the child from the father’s care in the Family Court foyer just moments before the hearing took place. This indicates the ICL showed bias in favour of the mother.
The CCTV footage does not reveal the alleged “aggressive manner” of the child’s removal by the mother as asserted by the father. Given the extraordinary circumstances of Ms C’s involvement on 22 November 2011, one would not have expected her to make such a submission.
l)On 22 November 2011, during the father’s address to the Court the ICL repeatedly interrupted the father. This showed her bias for the mother.
An examination of the transcript simply shows that Ms C was trying to, as she said, “speed the process up a little”. The father responded “I feel there has been bias in this case already”. Justice Johnston stated “Now, look, cut it out. Just get on with what you’ve got to tell me, please. There isn’t bias at all.”
Ms C made it clear that there had been new things since the matter was last before this Court. Indeed, Ms C states “What
Mr Somers is trying to say is that – he is trying to contextualise what happened and there are now new things that have happened.” The father responded “Thank you”. The father during that time read out to the Court a substantial part of his documentary evidence.
Ms C made a submission which could only be regarded as entirely appropriate. The Court reproduces that submission as follows:
“Well, your Honour, I am equally unprepared in as much as I have really only just been – I spent the afternoon endeavouring to ascertain the situation and leading evidence from the bar table as I am, I spent the better part of three-quarters of an hour speaking with the Deputy Principal of [X]’s school, who expressed concern about what occurred on Monday. I am clearly not in any position to address your Honour in relation to what happened on the Thursday. I have no capacity to indicate to your Honour as to whether the father’s allegations are in fact correct or not. I am deeply concerned by the number of times that [X] has been taken to Police stations… I don’t understand why, even if the father, for the best reasons, was seeking to file an application and an affidavit, appropriate to do, if what he said is correct, [X] was brought to the Court again today.”
m)On 22 November 2011, the ICL disclosed a visit to [C] Police before being corrected by the father. The father states that this visit was as to a future action of the mother in going to [C] Police on 24 November 2011 and that the ICL had prior knowledge of the mother’s future intentions to make allegations to [C] Police.
Even accepting the truth of the father’s proposition (and the ICL has not accepted that) this could not sound in any bias. Often parties discuss matters with an ICL hoping to gain the ICL’s support to a proposal and may even inform the ICL of future intended action.
n)The father submits that the ICL has failed in general to do the following things:
i)To contact [H] School in relation to the child’s ongoing absence in 2012;
ii)To contact the said school after issuing a subpoena to that school and that the child did not attend after that date;
iii)To contact the [omitted] Children’s Hospital regarding the child’s reassessment;
iv)To provide to Dr S the child’s medical file;
v)To notify the Court as to the mother’s diagnosis of Borderline Personality outlined in Professor Q’s report;
vi)To notify Family and Community Services regarding the child’s long term absence from [H] Public School and of the mother’s borderline personality disorder;
vii)To subpoena the child’s treating doctor, Allied Health who state that the child does not carry the diagnosis of autism;
viii)To submit to the Court the report of Ms S which states that the child was not autistic;
ix)To act on the outstanding issues addressed by Ms S in her report of 2010;
x)To notify the Court that the mother’s claim (in her affidavit of 16 November 2011) of severe autism was fabricated;
xi)To subpoena material pertaining to the mother’s ongoing psychiatric treatment for borderline personality disorder;
xii)To inform the Court of the mother’s ongoing history of making false allegations to the NSW Police for the purpose of the Family Court;
xiii)To inform the Court of the mother’s multiple contraventions impacting on the welfare of the child; and
xiv)To notify the father of the child’s welfare since 23 November 2011.
The father states the above matters show that the ICL has not acted impartially in dealing with the parties in this case, indicating “total bias” in favour of the mother and that the ICL has exhibited negligence in handling this case.
Mr Barry submitted, and the Court accepts, that there was nothing in the probative evidence before the Court which would suggest, given all of the matters asserted above, that Ms C had not observed proper boundaries in her conduct of the matter on behalf of the child to date. All of the above matters would appear to be part of and subject to the ongoing investigations of the ICL.
o)The father is of the belief that the ICL has shown bias in favour of the mother by failing to subpoena sufficient information and evidence regarding the child’s welfare throughout the duration of the case and has selected only that information that supports the mother. The father believes that that is compromising the safety and welfare of the child and the integrity of the case.
The ICL has made it clear that ongoing investigations are proceeding.
p)The father is of the belief that the ICL has not properly drawn attention to, or addressed the severity of the mother’s mental health issues, thus overlooking evidence when making recommendations to the Court. The Court does not accept this, given that these matters were addressed in Professor Q’s report referred to by the ICL.
q)
The father does not believe the ICL has met the child prior to
22 November 2011.
The father states the above information indicates a contravention of the ICL’s obligations to ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the Court.
Ms C was appointed as ICL in 2009 when the child was approximately 4 or 5 years of age. The proceedings were settled with final orders on 3 February 2010 and shortly prior to those orders, Professor Q had prepared her report being Exhibit “ICL1” which supported the view that the child, had been the subject of a diagnosis of possible autism when aged approximately 2½ and that he had presented as very smart but also very hard to control. The Professor in assessing the child’s mental health/special needs stated that he had had a number of assessments and his problems were well documented. The Professor said that “it is apparent that he has an autistic spectrum disorder”. The child was “difficult to assess… because of the combination of these developmental problems plus that he was very excited and distracted by the prospect of meeting with [the] father”.
The Court accepts the submission of the ICL that she had made a professional judgement, as she was entitled and required to do, to determine whether she would interview a child of that age given the above assessment. The Court further accepts that for a child with such a condition it can be traumatic for there to be any break in routine, including encountering strangers. The Court accepts further, that one of the obligations placed on the ICL is to endeavour to minimise any trauma for a child associated with the legal proceedings.
The Court was invited to view the CCTV footage of the parties during their attendances at the Court building on 22 November 2011. The Court was taken to some twelve scenes. There was visual footage in respect of eleven of those twelve scenes. Scene twelve however, could not be viewed as it would appear that there was no file to support the relevant program on the CD in Court. The CCTV footage was viewed in order to contextualise the allegations of bias said to arise out of the events on 22 November 2011. These events involve not only the child and the parents, but the Court’s Registry Manager, a family consultant, other Court security staff and a number of Police.
The exhibited CCTV footage has also been supplied to the Local Court of New South Wales, Downing Street Centre in relation to a charge and an AVO against the father. Those proceedings are part-heard and are currently before the Local Court returning on 21 May 2012.
An examination of the CCTV footage does not reveal the full factual details as the footage was limited by the range and direction of the relevant camera filming the events. The critical events whereby the mother took the child before entering the lift from the ground floor up to level 7 are not clearly shown. It would appear that the child was with the father and his partner at the ground floor enquiry counter. The child is seen to walk to the right away from the father and out of camera range. The mother says that when she came to the ground floor the child was nowhere near the father and that she then took him into the lift. The film reveals the mother taking the child into the lift. The later scuffle between the parents was again somewhat obscured. The mother at all times held the child in her arms. The father sought that the CCTV footage be played in chronological order and the Court was assisted in that regard by a security officer who accessed the programs on the CD so as to give effect to this. Both parties sought to show from the video evidence the benefit of their own interactions with the child.
The video evidence revealed in scenes 1 and 2 (lasting approximately 9 minutes) shows the father, his partner and the child engaging with a filing officer on the ground floor of the Court building. The child was observed to be somewhat bored, seated next to the father. At times, the child was slumped on the desk. The father’s partner often coming between the two to place documents on the counter. When the father stood up to leave, the child headed out ahead of him. Scene 3 revealed the child coming behind the father into the reception area, the father and his partner stood at the enquiry desk and the child wandered off to the right out of the range of the camera. Scene 4 reveals the mother and the child at the elevator. The mother takes the child by his hand and moved quickly to the lift on the far right. In Scene 5, the mother exits the lift on level 7 with the child. The mother appears to spend approximately 7 minutes on level 7 and is then observed carrying the child, calling the lift, walking about and then entering the lift. Scene 6 reveals the mother exiting the lift on the ground floor at approximately 3.35pm carrying the child. Scene 7 shows the altercation between the parents, the scuffle and the engagement of Court staff. After the scuffle, the mother is observed holding the child on the far side of a petition and then moves into an ante-room outside of the range of the camera. The father is observed to leave the area and then come back and gesticulates towards the officers. Scene 8 reveals details of the scuffle from a different angled camera. Scene 9 shows the parties moving into the Court on level 6. Scene 10 shows the father and his partner in the foyer area and then exiting the building. Scene 11 reveals the mother entering the reception area and taking the child.
The mother asserted that she had found the child in the foyer unattended near the glass doors opening onto Goulburn Street. The mother asserted in the scuffle that the father pulled at her arms which were around the child as she was holding the child on her chest. The mother asserted that her arm and neck had been grabbed and her shoulder injured.
The father asserted that not all of the CCTV footage had been relevantly produced including footage between himself and Ms C. It would appear that any such footage no longer exists. The CD containing the CCTV footage being all that remains and being that which was specifically bought into existence for the purposes of the Police proceedings currently before the Local Court of New South Wales at the Downing Centre.
Mr Barry submits, and the Court accepts that the viewed footage evidenced the volatility of the events, the heightened emotions and the fraught situation involving the child into which Ms C stepped on
22 November 2011. Ms C liaised with the Registry Manager to have the matter put urgently before a judicial officer and, as it would appear, the only judicial officer available on the day in either this Court or the Family Court of Australia was Justice Johnston.
The mother as a self-represented litigant focused on the CCTV footage to further argue that the father bringing the child into the Family Court Registry on a day when she asserted the child should have been in school and allowing the child to wander off in the foyer area of the Court near unattended automatic glass doors to the street were not in the best interests of the child. The mother also focused on the traumatic events of 22 November 2011 maintaining that she and the child had been injured. Those matters are the subject of proceedings now in the Local Court of New South Wales. The mother also submitted that orders for ongoing time with the father were not being strictly met by him and the child was not being returned. Those are the matters the subject of the ongoing parenting proceedings. They are not strictly relevant in relation to the application before the Court concerning the discharge of the ICL.
Mr Barry further, referred the Court to Professor Q’s report and, in particular, to what could be described as both parents’ personality disturbance profiles. The Professor states that although the mother “has significant mental health problems, for the most part she is devoted to [the child] and highly focused to meeting his complex developmental needs. There are times, however, when she has involved him in the turbulence of her relationship with [the father] and this constitutes a risk of harm to the child. At least some of the time she has been responsible for generating that turbulence but it seems that both parties have been responsible for this. All children are at risk of harm in such situations but a child such as [the child] is particularly vulnerable.”
The Professor also states that “independent information… suggests that [the father] suffers from some personality disturbance and that he has significant problems with anger management. This is suggested by the history of substance abuse and by the reports of him behaving in a hostile and confrontational manner in remarkably inappropriate settings. These behaviours on the part of the father would pose a risk of psychological harm to the child. Again, it must be noted that a child such as [the child] is particularly vulnerable. It is difficult to be confident of a diagnosis since [the father] denies that he has problems but the issues that have been noted here would suggest a cluster B personality disturbance with borderline features.”
The Professor refers to the child as being particularly vulnerable. The child has had a number of assessments and indeed, is continuing to have assessments. The Professor was of the view that the child had an “autistic spectrum disorder”. The child was difficult to assess because of a combination of developmental problems and his excitement and distraction at the prospect of meeting the father. The Professor reports that the child would be “an extremely challenging child to manage”. Notwithstanding the above, the Professor stated “the fact that [the child] is being mainstreamed this year [2010] is encouraging and possibly with continuing intensive intervention and protection from adversity such as family violence he may continue to make good progress.”
Mr Barry submitted on behalf of the ICL that the Professor’s statements as referred to above were extraordinarily prophetic in light of the observed CCTV footage and almost “prescient in its description of the turbulence the child witnessed”.
Mr Barry submits that the Court must place the father’s allegations of bias, that is predisposition and prejudice in favour of the mother in the context of what the Court observed in the CCTV footage and the comments provided by Professor Q. Mr Barry submitted that what confronted Ms C on 22 November 2011 were very difficult circumstances in which she was required to discharge her obligations to act in the best interests of the child. This was not a listed Court event and the matter proceeded in very unusual circumstances.
Mr Barry further submitted that what occurred on 22 November 2011, was essentially a re-run of the dispute between the parties heard on
16 November 2011 when the father had kept the child, contrary to existing orders and orders were then made requiring the child to be returned to the mother.
Mr Barry submits, and the Court accepts, that at the time Ms C was entitled to advance before the Court a view consistent with the position that was mandated by the then existing orders.
Mr Barry submits, and the Court accepts, that when the matter came before it on 16 November 2011, the transcript reveals that Ms C had made independent enquiries with Police officers and with the child’s school in order to make relevant submissions to the Court and the Court relied on those submissions to make the orders it did. These orders were not the subject of appeal.
Mr Barry submits and the Court accepts that when the matter came before the Family Court of Australia on 22 November 2011, the transcript reveals that Ms C made entirely appropriate submissions based on the matters then known to her. The father, on the other hand, stated after hearing Justice Johnston’s orders “This has been a very poor outcome, Your Honour”. The father had formed the view that his material was sufficient for the Court. The Court was seeking objective material to be produced by way of subpoena. The father stated “I would like Ms C to be discharged on the grounds of bias.” He asserted that she had been biased from day one and stated “I want her off the case”.
Accepting that the applicant father may hold the perception of bias that he does, the Court must still consider whether that, in all the circumstances, is sufficient to warrant the removal of the ICL. An assessment of that needs to take place in light of the material before the Court on 16 November 2011 and the events which transpired on 22 November 2011.
From the material before the Court, there is nothing to show that Ms C has done anything other than form a view based on a proper, considered and professional basis. That view was essentially that the then existing orders should be performed in the best interests of the child pending further hearing and the opportunity of obtaining objective evidence pursuant to subpoenas to be issued. The fact that Ms C asserted that position firmly and fearlessly, which was observed by the father to be contrary to the position that he was putting on behalf of the child is irrelevant.
The Court accepts Mr Barry’s submission that an ICL can at times, when the matter is outside the Court, seek to assist the parties in the role of “honest broker” in achieving some type of settlement. Mr Barry further submitted that the Court would be left in little doubt, given
Ms C’s experience over some 30 years, that she would have adopted such a role and that from the perspective of self-represented litigants, that may have given rise to the view that Ms C was supporting one parent’s position over that of the other.
The Court is of the view that the father’s complaints do not sustain an allegation of bias nor demonstrate any lack of professional objectivity.
The Court is not satisfied that the father has established that Ms C has lost impartiality nor that she has taken any steps that could be construed as not being in the best interests of the child.
The father’s application will be dismissed.
In closing submissions, the mother raised the issue as to whether the proceedings should be transferred to the Family Court of Australia for potential inclusion in the Magellan list. This matter was raised on 8 May 2012 when the father did not attend.
The ICL supports the transfer of the matter to the Family Court of Australia.
The Court would wish to hear from the father as to this potential for transfer. The matter will be re-listed with respect to that issue on
1 June 2012 at 9.30am for mention.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Kemp FM
Date: 25 May 2012
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